Amicus Curiae Brief — Prison Legal News, Petitioner v. Julie L. Jones, Secretary, Florida Department of Corrections

No. 18-355

IN THE

__________

PRISON LEGAL NEWS,

Petitioner,

v.

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.

__________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

__________

BRIEF OF LAW PROFESSORS AS

AMICI CURIAE IN SUPPORT OF PETITIONER

_________

CHARLES H. DAVIS

Counsel of Record

KEVIN K. RUSSELL

GOLDSTEIN & RUSSELL, P.C.

7475 Wisconsin Ave.

Suite 850

Bethesda, MD 20814

(202) 362-0636

cdavis@goldsteinrussell.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 6

I. THIS COURT’S REVIEW IS NECESSARY TO

REESTABLISH THE PROPER ANALYSIS OF

CENSORSHIP DECISIONS BY PRISON OFFICIALS.......... 6

A. This Court Never Intended For Review

Under Turner To Involve Near Absolute

Deference To Prison Officials .......................... 7

B. The Courts Of Appeals Have Misread

Turner And Extended Deference Too Far,

Resulting In Inconsistent Results ................. 10

II. IN THE ALTERNATIVE, THIS COURT SHOULD

RECONSIDER THE AMOUNT OF DEFERENCE

GIVEN AND ALLOCATIONS OF BURDENS

UNDER TURNER .................................................... 18

CONCLUSION ......................................................... 24

APPENDIX: Amici and University Affiliations...... 1a

ii

TABLE OF AUTHORITIES

Cases

Beard v. Banks,

548 U.S. 521 (2006) ................................. 3, 9, 10, 17

Brown v. Entm’t Merchs. Ass’n,

564 U.S. 786 (2011) ............................................... 17

City of Boerne v. Flores,

521 U.S. 507 (1997) ............................................... 20

Davila v. Gladden,

777 F.3d 1198 (11th Cir. 2015) ............................. 20

Garner v. Kennedy,

713 F.3d 237 (5th Cir. 2013) ................................. 21

Haight v. Thompson,

763 F.3d 554 (6th Cir. 2014) ................................. 21

Hause v. Vaught,

993 F.2d 1079 (4th Cir. 1993) ........................... 3, 14

Holt v. Hobbs,

135 S. Ct. 853 (2015) ................................. 20, 21, 23

Jehovah v. Clarke,

798 F.3d 169 (4th Cir. 2015) ................................. 21

Johnson v. California,

543 U.S. 499 (2005) ......................................... 10, 19

Koger v. Bryan,

523 F.3d 789 (7th Cir. 2008) ................................. 21

Mack v. Warden Loretto FCI,

839 F.3d 286 (3d Cir. 2016) .................................. 20

Montejo v. Louisiana,

556 U.S. 778 (2009) ................................................ 18

Munson v. Gaetz,

673 F.3d 630 (7th Cir. 2012) ............................. 3, 15

iii

New Doe Child #1 v. United States,

901 F.3d 1015 (8th Cir. 2018) ................................ 20

O’Lone v. Estate of Shabazz,

482 U.S. 342 (1987) ......................................... 19, 20

Overton v. Bazzetta,

539 U.S. 126 (2003) ............................................... 17

Prison Legal News v. Cook,

238 F.3d 1145 (9th Cir. 2001) ............................... 15

Prison Legal News v. Livingston,

683 F.3d 201 (5th Cir. 2012) ........................... 15, 16

Procunier v. Martinez,

416 U.S. 396 (1974) ....................................... passim

Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995) ............................................... 16

Shaw v. Murphy,

532 U.S. 223 (2001) ............................................... 17

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ............................................... 17

Thornburgh v. Abbott,

490 U.S. 401 (1989) ....................................... passim

Turner v. Safley,

482 U.S. 78 (1987) ......................................... passim

United States v. Alvarez,

567 U.S. 709 (2012) ............................................... 17

United States v. Gaudin,

515 U.S. 506 (1995) ................................................ 19

United States v. Sec’y, Fla. Dep’t of Corr.,

828 F.3d 1341 (11th Cir. 2016) ............................. 21

Williams v. Annucci,

895 F.3d 180 (2d Cir. 2018) .................................. 21

iv

Constitutional Provisions

U.S. Const. amend. I .......................................... passim

Statutes

Religious Freedom Restoration Act of 1993,

42 U.S.C. § 2000bb et seq. ................................. 5, 19

42 U.S.C. § 2000bb-1 ........................................... 20

Religious Land Use and Institutionalized

Persons Act of 2000,

42 U.S.C. § 2000cc et seq. ............................... 1, 5, 20

42 U.S.C. § 2000cc-1(a) ....................................... 20

Rules

Fla. Admin. Code r.33-501.401(3)(l) .......................... 11

Sup. Ct. R. 37 ............................................................... 1

Other Authorities

David M. Shapiro, Lenient in Theory, Dumb in

Fact: Prison, Speech, and Scrutiny,

84 Geo. Wash. L. Rev. 972 (2016) .............. 11, 16, 21

INTEREST OF AMICI CURIAE 1

Amici curiae listed in the Appendix are law professors who teach and write in the fields of First

Amendment law or constitutional rights in the prison

context. Amici come together out of a shared belief

that the Eleventh Circuit’s opinion upholding the Florida Department of Corrections’ censorship of Prison

Legal News presents a good vehicle for this Court to

reassert the limits of deference given to prison officials

under Turner v. Safley, 482 U.S. 78 (1987).

In particular, Amici Law Professors believe the

courts of appeals have consistently misinterpreted

Turner to give unrestrained deference to prison officials when faced with prisoner attempts to exercise

their First Amendment rights. This Court’s guidance

is necessary to protect against further erosion of these

constitutional rights. Amici Law Professors also believe that, in the alternative, this Court should reassess the reasonableness standard adopted in Turner

and instead apply heightened scrutiny to censorship

decisions by prison officials, especially given that federal courts have demonstrated the institutional capacity to scrutinize prison restrictions on the free exercise

of religion under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq.

1

Pursuant to Supreme Court Rule 37, counsel for amici represents that they authored this brief in its entirety and that none

of the parties or their counsel, nor any other person or entity other

than amici or their counsel, made a monetary contribution intended to fund the preparation or submission of this brief. Letters from counsel for petitioner and respondent granting blanket

consent to the filing of amicus briefs are on file with the Clerk,

and counsel for both parties received timely notice of amici’s intent to file this brief.

2

SUMMARY OF ARGUMENT

When prison officials attempt to restrict a prisoner’s assertion of his or her constitutional rights,

courts must determine whether that restriction is

“reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). This

Court has consistently reiterated that the “reasonableness standard is not toothless.” Thornburgh v. Abbott,

490 U.S. 401, 414 (1989) (citation omitted). Nonetheless, the courts of appeals have applied unquestioned

deference to prison officials’ safety-related justifications for denying publishers’ and prisoners’ First

Amendment rights of dissemination of and access to

information, respectively. The decision in this case is

emblematic of this trend and its dangers: affording

prison officials extraordinary deference, the Eleventh

Circuit upheld a decision by the Florida Department of

Corrections (FDOC) to censor Prison Legal News—

which educates prisoners about their legal rights and

provides information about conditions in prisons

throughout the country—solely because it deemed the

publication to have too many advertisements of a particular sort. No other prison system applies the FDOC

rule or anything like it. Yet, the Eleventh Circuit upheld the censorship because prison officials in Florida

said they disagree with the national consensus and believe the restriction is necessary for prison security.

FDOC officials, however, failed to identify any evidence that Florida prisons faced special security risks

that would require heightened censorship as compared

to the rest of the nation. And the scattered periods

when FDOC did not censor Prison Legal News showed

that there was no increase in security risks or incidents when prisoners received the publication.

3

In light of the courts of appeals’ failure to meaningfully review restrictions on prisoner constitutional

rights, Prison Legal News’s petition asks whether this

Court must reassess the deference provided under

Turner as applied to Prison Legal News. The answer

is a resounding “Yes.”

I. Turner recognized that “separation of powers

concerns counsel a policy of judicial restraint” regarding the “[r]unning [of] a prison” because it is an “inordinately difficult undertaking that requires expertise,

planning, and the commitment of resources.” 482 U.S.

at 84-85. The Court, however, did not intend for the

Turner reasonableness analysis to devolve into whether a prison official’s justifications merely could pass an

absurdity check. The reasonableness test must delve

further into the officials’ reasoning because “[p]rison

walls do not form a barrier separating prison inmates

from the protections of the Constitution.” Ibid.; see

also Beard v. Banks, 548 U.S. 521, 536 (2006) (plurality opinion) (“Turner requires prison authorities to

show more than a formalistic logical connection between a regulation and a penological objective.”).

The courts of appeals have failed to faithfully apply this Court’s teachings in Turner, time and again

simply deferring to prison administrators without any

meaningful scrutiny of their justifications. For example, the Fourth Circuit in Hause v. Vaught, 993 F.2d

1079 (4th Cir. 1993), upheld a ban on prisoner receipt

of periodicals due to the risk of storing flammable materials, even though the same prisoners were allowed

to have paper in the form of personal and legal correspondence in their cells. And the Seventh Circuit in

Munson v. Gaetz, 673 F.3d 630 (7th Cir. 2012), upheld

a ban on a prisoner storing a copy of the Physicians’

4

Desk Reference in his cell that prison officials justified

due to the content of the book, even though the same

book (and content) was available to prisoners in the

prison library.

Some courts have mistakenly believed that such

extraordinary deference is dictated by this Court’s decisions, a misimpression this case provides the Court

an opportunity to correct. This Court has struck down

only one regulation under Turner, and that was the

marriage ban in Turner itself. Because of the cases

that have appeared before this Court and survived reasonableness review, the courts of appeals have taken

these results as a license to give unrestrained deference to prison officials.

Such unwavering deference creates substantial

opportunities for abuse. When courts will accept almost any justification for censorship, prison officials

have little reason to forgo it. At the same time, prison

officials have strong incentives to restrict prisoner access to materials like Prison Legal News for reasons

having nothing to do with security. Publications like

Prison Legal News inform prisoners of their constitutional rights and assist them in bringing appropriate

challenges to the conditions of their incarceration. In

doing so, Prison Legal News facilitates the pursuit of

meritorious claims while cutting down on non-viable,

and even vexatious, prisoner litigation. By barring

prisoners from receiving this information, prison officials restrict prisoners with viable claims from accessing courts and make it substantially more difficult for

those prisoners to force necessary improvements to

their incarceration and to identify legitimate abuses

5

perpetuated by prison officials.2 And by allowing officials to hide invidious viewpoint or content-based discrimination behind post hoc rationalizations for censorship decisions, the courts create an atmosphere

that tolerates abuses of power that go to the heart of

what the First Amendment is intended to prohibit.

Certiorari is necessary to reestablish that Turner

review is reasonableness review with teeth. And the

present petition is an ideal vehicle to revisit how the

courts of appeals have interpreted Turner considering

that FDOC stands alone amongst its peers in restricting access to Prison Legal News due to its advertising.

II. The Court should also grant certiorari to reconsider whether it should impose a standard of review that requires courts to inquire more deeply into

the prison officials’ security justifications than Turner

currently permits. The decision in this case, and others like it, suggests that the Turner standard has

proven unworkable in practice, too susceptible to blind

deference to prison officials’ decisions to protect vital

First Amendment rights. At the same time, Turner’s

foundational assumptions have been undermined by

the Court’s more recent decisions and experience in

the prison context. In the years after Turner, Congress

enacted the Religious Freedom Restoration Act of

1993, 42 U.S.C. § 2000bb et seq., and the Religious

Land Use and Institutionalized Persons Act of 2000,

2

Increasing prisoner access to Prison Legal News and similar

publications also increases prison safety and security by empowering prisoner grievances that could ferret out abusive practices

and corrupt corrections officials who tarnish the work of scrupulous prison administrators.

6

42 U.S.C. § 2000cc et seq., both of which effectively apply strict scrutiny to prison administrators’ decisionmaking. Applying these statutes, this Court and the

lower courts have shown that they have the institutional capacity to meaningfully scrutinize prison officials’ justifications for policies that burden First

Amendment rights without unduly interfering with

prison administration. As the courts now have experience applying heightened scrutiny in the area of prisoner First Amendment rights, Turner’s main justification for its reasonableness test is robbed of much of its

weight.

ARGUMENT

I. THIS COURT’S REVIEW IS NECESSARY TO

REESTABLISH THE PROPER ANALYSIS OF

CENSORSHIP DECISIONS BY PRISON OFFICIALS.

As detailed in the petition, the Eleventh Circuit’s

decision relies on an untenable interpretation of

Turner v. Safley, 428 U.S. 78 (1987), that gives exceptional deference to prison officials’ penological justifications even when they are not grounded in either experience or logic. Pet. 28-32. The Eleventh Circuit’s

approach also illustrates a broader problem with the

courts of appeals’ treatment of assertions of First

Amendment rights within prisons. Because this nowprevalent approach of extraordinary deference is inconsistent with this Court’s longstanding treatment of

such censorship decisions, this Court’s intervention is

necessary.

7

A. This Court Never Intended For Review

Under Turner To Involve Near Absolute

Deference To Prison Officials.

Prisoners retain certain constitutional rights

within prison walls, including the right to receive mail

and obtain information. See Thornburgh v. Abbott,

490 U.S. 401, 409-13 (1989). Protecting this right to

information is particularly important for prisoners,3 as

prison officials have strong incentives to prevent prisoners from accessing publications like Prison Legal

News for reasons having nothing to do with legitimate

security interests. A principal function of Prison Legal

News, for example, is to inform prisoners of their legal

rights and to assist them in taking appropriate action

to enforce those rights, including through litigation

that prison officials may find bothersome. Pet. 4-5.

Scrutinizing prison officials’ censorship of such publications will ensure that First Amendment rights are

protected and that officials may not hide impermissible justifications behind claims of security.

Such scrutiny is also necessary to ensure that incarceration does not result in unjustifiable infringement of a variety of important constitutional rights.

As this case illustrates, even beyond its harm to vital

First Amendment interests, unwarranted censorship

risks other constitutional rights, such as access to

courts. By restricting access to information about how

prisoners can assert their legal rights, prison officials

3

Correspondents and publishers also maintain constitutional

rights regarding access to prisoners. Abbott, 490 U.S. at 408. Although framed within the context of prisoner First Amendment

rights, this case further implicates the First Amendment rights

of publishers in the prison setting, which also are analyzed under

the Turner standard. Id. at 412-13.

8

hinder prisoners from both challenging their own incarceration and forcing improvement in the conditions

of confinement through civil suits. And by denying

prisoners access to information about prison conditions in their own and other systems, prisoners are less

able to identify potential abuses perpetuated by officials. Pet. 19 (identifying Prison Legal News articles

critical of FDOC).

Recognizing these dangers, the Court in Procunier

v. Martinez, 416 U.S. 396, 405-06 (1974), emphasized

that “[w]hen a prison regulation or practice offends a

fundamental constitutional guarantee, federal courts

will discharge their duty to protect constitutional

rights.” Although acknowledging that “courts are ill

equipped to deal with the increasingly urgent problems of prison administration and reform,” the Court

insisted that “a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims.” Ibid. Accordingly, the Court struck

a balance, invalidating regulations “concerning personal

correspondence between inmates and noninmates.”

Abbott, 490 U.S. at 408. The Court found that the regulations did not “further an important or substantial

governmental interest unrelated to the suppression of

expression,” and the limitations were “greater than is

necessary or essential to the protection of the particular governmental interest involved.” Martinez, 416

U.S. at 413.

The Court revisited this standard in Turner and

Abbott, holding that “Martinez should, or need, [not]

be read as subjecting the decisions of prison officials to

a strict ‘least restrictive means’ test,” and instead

adopting a reasonableness standard. Abbott, 490 U.S.

at 411-13. Turner explained that Martinez “turned on

9

the fact that the challenged regulation” restricted the

rights of non-prisoners, while the intra-prison communications at issue in Turner did not involve non-prisoner rights. 482 U.S. at 85. For a case solely focusing

on “prisoner rights,” the Court held that a reasonableness analysis sufficiently protects prisoner constitutional rights while appropriately deferring to prison officials’ expertise in prison security. Id. at 87-89. The

Court, however, did not intend for this reasonableness

standard to become a rubber stamp on the prison officials’ justifications, particularly in cases involving the

rights of a non-prisoner publisher. See supra n.3. Instead, it instructed courts to scrutinize a prison’s asserted justification in light of four factors: (1) whether

there is “a valid, rational connection between the

prison regulation and the legitimate governmental interest put forward to justify it”; (2) “whether there are

alternative means of exercising the right that remain

open to prison inmates”; (3) “the impact accommodation of the asserted constitutional right will have on

guards and other inmates, and on the allocation of

prison resources generally”; and (4) “the absence of

ready alternatives.” 482 U.S. at 89-91 (internal quotation marks omitted). At each stage of the analysis, the

Court made clear, reviewing courts must look beyond

officials’ facial justifications to determine if there is evidence supporting their safety concerns. Ibid. Applied

in this way, “the Turner standard . . . is not toothless.”

Abbott, 490 U.S. at 414 (quotation marks omitted).

The Court reaffirmed the rigor required by Turner

more recently in Beard v. Banks, 548 U.S. 521 (2006).

In a dissent, Justice Ginsburg argued that it is insufficient for officials simply to assert that “in our professional judgment the restriction is warranted.” Id. at

10

556 (Ginsburg, J., dissenting). Although differing on

Turner’s application to the case before the Court, four

justices agreed that a simple assertion of security need

is not enough. Reiterating that the “constitutional interest here is an important one,” the plurality emphasized that “Turner requires prison authorities to show

more than a formalistic logical connection between a

regulation and a penological objective.” Id. at 535 (plurality opinion).

Although the Court has stepped away from the

more protective language of Martinez, it has since

made clear that the Turner reasonableness test is not

merely an illusory restraint on prison officials, but instead requires those officials to assert a logical and justifiable penological purpose for limiting a prisoner’s

constitutional rights. Johnson v. California, 543 U.S.

499, 547 (2005) (Thomas, J., dissenting) (“[W]e have

never treated Turner as a blank check to prison officials. Quite to the contrary, this Court has long had

‘confidence that . . . a reasonableness standard is not

toothless.’”) (quoting Abbott, 490 U.S. at 414).

B. The Courts Of Appeals Have Misread

Turner And Extended Deference Too

Far, Resulting In Inconsistent Results.

This Court has described the Turner standard as

one that requires the lower courts to perform a searching review of prison officials’ justifications, but the

courts of appeals have failed to faithfully apply

Turner, resulting in ineffective review of prison regulations and almost absolute deference to officials’ penological justifications. This requires this Court’s intervention to correct.

11

1. There are many examples of how the courts

have used Turner to uphold arbitrary and nonsensical

restrictions on speech, as catalogued in David M.

Shapiro, Lenient in Theory, Dumb in Fact: Prison,

Speech, and Scrutiny, 84 Geo. Wash. L. Rev. 972

(2016). Certain of these examples show the depths of

deference and complete lack of principled review being

performed by these courts.

FDOC’s censorship of Prison Legal News is a particularly egregious example. FDOC justifies its ban on

the presence of certain advertisements for services

(like three-way calling) it prohibits its prisoners from

using. But it does not simply ban any publication advertising such a forbidden service. In fact, it routinely

tolerates such advertisements. A publication is banned only if officials deem that the problematic ads are

too “prevalent” or “prominent.” Fla. Admin. Code r.33501.401(3)(l). The vagueness of that flabby standard

is a problem in itself, see infra at 12-13. But it also

makes a hash out of any claim that the ban is justified

by the belief that prisoners will respond to the ads by

breaking prison rules. If FDOC actually believed the

ads led to further rule-breaking—which is not supported by evidence—FDOC would censor publications

with even a single concerning advertisement. Pet. 2829.

FDOC’s decision to tolerate ads for illicit services

no doubt reflects its view that the prison already has

adequate means of preventing prisoners from accessing the advertised services that violate the institution’s rules. Pet. 22-23. Although FDOC claimed that

the censorship was necessary because activities like

three-way calling, pen pal correspondence, stamp trading, or use of concierge services could threaten the

12

safety of persons outside the prison or facilitate criminal activity, FDOC already banned those activities directly. Pet. App. 3-8; see also Pet. 13 (describing justifications relied on by court of appeals). During the

nineteen years when FDOC did not censor Prison Legal News, there was no uptick in the number of incidents involving these banned activities, showing that

the prison had ample means to enforce its rules. Pet.

14. And, in some instances, FDOC created limited exceptions permitting the underlying conduct. Pet. 22.

This is exactly the sort of arbitrary decision-making

that Turner held to be a threat to the First Amendment, even within prison walls.

The ill fit between the rule and the purported justification gives rise to the suspicion that something

else is afoot. At the same time, the vagueness of

FDOC’s standard creates ample opportunity for officials to ban publications for any number of other

unacknowledged and indefensible reasons, including

on the basis of viewpoint or content.

Such a malleable standard also promotes the arbitrary decision-making seen here—FDOC justified its

2009 censorship of Prison Legal News on an increase

in the number of ads in the magazine, but the increase

in ads was due to the magazine itself increasing in

length. Pet. 14. Thus, the proportion of ads to other

content—which should be the determinant of relativistic measures like the “prominen[ce]” or “prevalen[ce]” of ads in a publication—did not change significantly, yet FDOC inconsistently swapped between

permitting and banning Prison Legal News over a

twenty-year period. Ibid.; see also Turner, 482 U.S. at

89-90 (“[A] regulation cannot be sustained where the

13

logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational.”).

FDOC is also the only prison system in the country—federal, state, or local—to censor Prison Legal

News on the basis of its advertising. Pet. 8-9. The regulations (or lack thereof) adopted by “[o]ther well-run

prison systems, including the Federal Bureau of Prisons,” are highly relevant to the Turner analysis.

Turner, 482 U.S. at 93; Martinez, 416 U.S. at 414 n.14

(“While not necessarily controlling, the policies followed at other well-run institutions [are] relevant to a

determination of the need for a particular type of restriction.”). FDOC has failed to identify any concerns

that are exclusive to Florida penal institutions that

would justify its unique censorship of Prison Legal

News. Pet. 1.

The Eleventh Circuit nonetheless deferred to

prison officials’ justifications for their application of

the rule to Prison Legal News, including that officials

could ban any publications that “might enable [prisoners] to break prison rules,” and that the “rules certainly help advance [safety] interests.” Pet. App. 9, 43.

The court called these justifications a “common-sense

proposition” and consistently rejected the relevance of

the facts showing the arbitrariness of the rule’s application, id. at 27-43, even though, in prior litigation

over application of the rule, FDOC conceded that there

were no safety justifications sufficient to uphold the

censorship of Prison Legal News on the basis of advertising content. Pet. 9-10. As discussed, application of

the rule to Prison Legal News lacked a rational underpinning and did not result in any change in prisoner

14

behavior, all while restricting prisoners from information related to enforcing their constitutional rights.

These justifications would not pass a reasonableness

test in any other field of law, and Turner did not apply

such a feeble standard within prison walls.

2. The Eleventh Circuit hardly stands alone in its

lax application of Turner. In Hause v. Vaught, 993

F.2d 1079 (4th Cir. 1993), the prisoner challenged the

prison’s policy of “not permitting detainees to receive

books and periodicals in the mail.” Id. at 1081. Prison

officials justified their policy under two rationales. Id.

at 1083-84. First, they claimed that allowing prisoners

to have publications in their cells presented a fire risk,

and the court accepted that justification as sufficient

to uphold the policy. Ibid. The problem is that the

prison allowed prisoners to have correspondence and

other letters in their cell, which presumably could just

as easily start fires. Ibid. The court brushed this concern aside by stating that officials’ lenience towards

some paper in cells did not mean that the prison could

not restrict other paper, even though the paper was indistinguishable with regards to flammability. Ibid.

The court upheld the policy despite its irrationality,

which is contrary to Turner.

The prison also justified the policy by claiming

that outside publications could be used to smuggle contraband. Ibid. The court did not dispute that, as the

prisoners argued, this rationale was no justification

for banning publications shipped directly to the prisoner from a publisher. But it upheld even that aspect

of the policy on the supposition – utterly unsupported

in the record – that “most publications sent from publishers and book clubs” arrive at the prison after the

prisoner has been transferred to another facility. Ibid.

15

Similarly, in Munson v. Gaetz, a prisoner ordered

a copy of the Physicians’ Desk Reference from an authorized vendor because the prisoner wanted to educate himself about prescription drugs and possible side

effects. 673 F.3d 630, 631-32 (7th Cir. 2012). Even

though the Physicians’ Desk Reference was available at

the prison library, the prison rejected the prisoner’s order simply by writing “DRUGS” on a standard form.

Id. at 632. Applying Turner, the court gave almost absolute deference to prison officials, concluding that because the “book[] contain[s] drug-related content and

the prison restricted [prisoner’s] access to the books

because of their drug-related content . . . . [t]here was

little else to say.” Id. at 635. The court found that the

library’s copy of the book weighed in favor of the restriction by providing an alternate means of accessing

the information, even though the prison did not base

its restriction on physical possession of the book, but

on the information contained therein. Id. at 636-37.

Courts have also developed different frameworks

for applying Turner, adopting conflicting approaches

even in cases involving similar publications. In Prison

Legal News v. Cook, the Ninth Circuit applied a

burden-shifting framework, where after the publisher

“present[ed] sufficient evidence that refutes a

common-sense connection between a legitimate objective and a prison regulation, . . . the state must present

enough counter-evidence to show that” the policy is not

“arbitrary or irrational.” 238 F.3d 1145, 1150 (9th Cir.

2001). In contrast, the Fifth Circuit in Prison Legal

News v. Livingston, like the Eleventh Circuit in its

review below, took the prison officials’ penological

justifications as given and placed the burden entirely

on Prison Legal News to disprove those assertions

16

without requiring the defendants to present counterevidence. 683 F.3d 201, 215-20 (5th Cir. 2012).

These cases, among others,4 demonstrate the

length to which courts of appeals will contort themselves to defer to prison officials and their penological

justifications under Turner.

3. The level of extreme deference that has developed since Turner permits and encourages authorities

to hide invidious viewpoint or content-based discrimination under the guise of post hoc, neutral penological

justifications.

The Fifth Circuit has recognized the possibility for

such chicanery, while doing little to prevent it:

[C]ensorship of viewpoints critical of prison

systems or prison administrators may disguise itself in a policy of excluding books depicting guard-prisoner conflict on the purported basis that they are likely to incite similar conflict. . . . [But] in the absence of specific

evidence indicating that [prison officials] excluded the book to censor its criticism of prisons, as opposed to excluding it because of its

potentially harmful effects, [its] decision does

not run afoul of Turner.

Livingston, 683 F.3d at 218.

Applying Turner in a way that effectively provides

license for viewpoint and content-based discrimination

is intolerable. See, e.g., Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829-30 (1995) (viewpoint discrimination is an “egregious form of content

4

See Shapiro, supra, at 988-1005.

17

discrimination” which is “presumptively unconstitutional”). To be sure, incarcerated prisoners and publishers seeking to communicate with them enjoy lesser

First Amendment protection. But this Court has recently and repeatedly recognized the need for vigilance

against such discrimination in other fields that ordinarily enjoy less robust First Amendment protection.

See, e.g., United States v. Alvarez, 567 U.S. 709 (2012)

(plurality opinion) (false speech); Brown v. Entm’t

Merchs. Ass’n, 564 U.S. 786 (2011) (violent imagery);

Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (commercial speech). If prison officials can conjure up

phony penological justifications in support of a censorship policy, including irrational justifications like in

Hause, there is little to prevent them from discriminating among publications on the basis of their content

or viewpoints without having to justify the distinct

First Amendment injury occasioned by such discrimination. See Beard, 548 U.S. at 552 (Stevens, J., dissenting) (comparing such censorship decisions to

“state-sponsored effort at mind control”).

4. Certiorari is particularly warranted because

the lower courts’ misapplication of Turner may be due,

in part, to a misimpression arising from the fact that

in the few cases the Court has decided since Turner,

the Court has almost exclusively sided with prison officials, upholding the restrictions under various

safety-related justifications. See Beard, 548 U.S. at

530-35 (plurality opinion); Overton v. Bazzetta, 539

U.S. 126, 133-36 (2003); Shaw v. Murphy, 532 U.S.

223, 230-32 (2001); Abbott, 490 U.S. at 414-19; Turner,

482 U.S. at 91-93. Indeed, the only time the Court has

struck down a prison regulation under Turner was in

18

Turner itself, and that was for a restriction on marriage, not a restriction on prisoner-to-prisoner or, more

aptly, publisher-to-prisoner correspondence. 482 U.S.

at 94-99. Because the regulations that reached this

Court have almost uniformly been upheld, some courts

of appeals have failed to look deeper into this Court’s

application of Turner and mistakenly assumed that almost any safety-related justification would do, or that

almost all justifications are legitimately borne out of

concerns for prison safety and security.

II. IN THE ALTERNATIVE, THIS COURT SHOULD

RECONSIDER THE AMOUNT OF DEFERENCE

GIVEN AND ALLOCATIONS OF BURDENS

UNDER TURNER.

In light of the courts of appeals’ failure to correctly

apply Turner, the standard has proven unworkable in

practice and out of step with recent jurisprudence.

Thus, the Court should reconsider Turner to require a

more searching review of prison officials’ justifications

for censorship decisions.

1. As just described, the Turner standard has

proven unworkable in practice. See Montejo v. Louisiana, 556 U.S. 778, 792 (2009) (unworkability of precedent is a reason to revisit it). Despite this Court’s clear

warnings that reasonableness review is not tantamount to abdication of the judicial role, the lower

courts have been unable to find a way to give Turner

review “teeth,” instead applying a standard of review

that provides only a cursory examination of a policy’s

justification.

2. At the same time, subsequent legal developments have eroded Turner’s underpinnings, another

19

reason for reconsidering that precedent. See, e.g.,

United States v. Gaudin, 515 U.S. 506, 521 (1995).

The Court moved away from the more searching

review of Martinez and adopted the reasonableness

analysis of Turner, supra at 8-10, due to concerns that

“the judiciary is ‘ill equipped’ to deal with the difficult

and delicate problems of prison management,” Abbott,

490 U.S. at 407-08 (citation omitted), and its belief

that “[s]ubjecting the day-to-day judgments of prison

officials to an inflexible strict scrutiny analysis would

seriously hamper their ability to anticipate security

problems and to adopt innovative solutions to the intractable problems of prison administration,” Turner,

482 U.S. at 89. The Court felt that a more deferential

reasonableness analysis was necessary because it

lacked the institutional capacity to judge the appropriateness of penological justifications. The extensive

deference that eventually metastasized into the “blank

check” now given to prison officials derived from the

Court’s discomfort with making the sorts of administrative decisions related to prison safety involved in

censorship restrictions. Johnson, 543 U.S. at 547

(Thomas, J., dissenting).

Since Turner and Abbott, however, this Court and

the courts of appeals have gained extensive experience

applying a less-deferential standard to restrictions on

prison First Amendment rights. Congress enacted the

Religious Freedom Restoration Act (RFRA), 42 U.S.C.

§ 2000bb et seq., in 1993. RFRA applies strict scrutiny

to all state and federal action that substantially burdens religious exercise,5 including prison operations.

5

Prior to RFRA, this Court in O’Lone v. Estate of Shabazz,

482 U.S. 342, 349-50 (1987), extended the Turner reasonableness

20

42 U.S.C. § 2000bb-1 (requiring “compelling governmental interest” and “least restrictive means”). Although this Court held that RFRA was unconstitutional as applied to the states, City of Boerne v. Flores,

521 U.S. 507 (1997), the courts of appeals still apply

RFRA to free exercise restrictions allegedly imposed

by the federal government, New Doe Child #1 v. United

States, 901 F.3d 1015 (8th Cir. 2018), including in federal prisons, Mack v. Warden Loretto FCI, 839 F.3d

286 (3d Cir. 2016); Davila v. Gladden, 777 F.3d 1198

(11th Cir. 2015).

Congress responded to City of Boerne by enacting

the Religious Land Use and Institutionalized Persons

Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc et seq.,

which applies the same strict scrutiny of RFRA to a

narrow subset of state programs including, as most

relevant here, state prisons that accept federal funding. See Holt v. Hobbs, 135 S. Ct. 853 (2015). Under

RLUIPA:

No government shall impose a substantial

burden on the religious exercise of a person

residing in or confined to an institution . . .

unless the government demonstrates that imposition of the burden . . . (1) is in furtherance

of a compelling governmental interest; and

(2) is the least restrictive means of furthering

that compelling governmental interest.

42 U.S.C. § 2000cc-1(a). Thus, RLUIPA imposed an

even higher standard than Martinez, which required

analysis to prisoner Free Exercise Clause claims. It applied

Turner to the Free Exercise Clause because of similar concerns

about the Court’s lack of institutional expertise related to prison

safety. Id. at 349.

21

only an “important or substantial governmental interest” along with limiting restrictions to “no greater than

is necessary or essential to the protection of the particular governmental interest involved.” 416 U.S. at 413.

For more than two decades, this Court and the

lower courts have effectively applied the heightened

standard of RFRA and RLUIPA to prison safety regulations, and there has been no evidence that this more

searching review has led to any uptick in security incidents or other harms to prison operations. See

Shapiro, supra, at 1022-23 (citing statement from federal government that “the federal Bureau of Prisons

has managed the largest correctional system in the

Nation under the same heightened scrutiny standard

as RLUIPA without compromising prison security,

public safety, or the constitutional rights of other prisoners.”). This Court recently explained that RLUIPA

“does not permit . . . unquestioning deference” to

prison officials and, although “courts should respect

[officials’] expertise,” “that respect does not justify the

abdication of the responsibility . . . to apply RLUIPA’s

rigorous standard.” Holt, 135 S. Ct. at 864. And the

courts of appeals have regularly applied the heightened scrutiny of RLUIPA to free exercise claims

brought by prisoners in state correctional facilities

while giving limited deference to prison officials’ penological justifications. See, e.g., Williams v. Annucci,

895 F.3d 180 (2d Cir. 2018); Jehovah v. Clarke, 798

F.3d 169 (4th Cir. 2015); Haight v. Thompson, 763

F.3d 554 (6th Cir. 2014); Garner v. Kennedy, 713 F.3d

237 (5th Cir. 2013); Koger v. Bryan, 523 F.3d 789 (7th

Cir. 2008); see also United States v. Sec’y, Fla. Dep’t of

Corr., 828 F.3d 1341 (11th Cir. 2016) (suit brought by

Department of Justice under RLUIPA).

22

Thus, if Prison Legal News had been a religious

magazine with the same advertising content, respondent would have the burden of meeting the stringent

RLUIPA standard and there would be no question of

the district or circuit courts’ competency to apply that

test. Because the application of RLUIPA has shown

that the concerns giving rise to deference under

Turner and O’Lone are tenuous at best, this deference

no longer has a strong basis in fact. It is time for a

reevaluation of Turner.

3. In place of Turner, this Court either should

adopt the stricter RLUIPA standard discussed above,

or at least return to the intermediate scrutiny afforded

by Martinez, requiring that prison officials demonstrate that a restriction on publisher or prisoner

speech “furthers one or more of the substantial governmental interests of security, order, and rehabilitation,”

and was “no greater than is necessary or essential to

the protection of the particular governmental interest

involved.” 416 U.S. at 413.

This established standard continues to acknowledge the limits of judicial competency, and affords appropriate deference to prison administrator’s special

expertise. But it protects against the abuses Turner

has allowed, in several important respects.

First, heightened scrutiny requires prison officials

to identify and substantiate a real threat to security,

order, or rehabilitation that would be addressed in a

material way by the proposed censorship. It simply

cannot be sufficient for prison officials to justify censorship on a belief that a publication could create generic, vague safety concerns without having to provide

some evidence that there is an actual and realistic

danger to either the prison population or the public at

23

large. Instead, the institution must substantiate the

claimed risk to security by providing, for example, evidence of how frequently that harm would occur, how

seriously it would manifest, and whether it has happened in other systems that did not take similar censorship steps.

Second, in deciding whether a prison has sustained this burden, courts should look to the experience of other systems. When, as here, a policy stands

as a conspicuous outlier from the vast majority of similarly-situated prison systems, the prison should be required to explain the discrepancy and justify its unusual actions with concrete evidence. See Holt, 135

S. Ct. at 866; Martinez, 416 U.S. at 414 n.14.

Third, although heightened scrutiny does not require prisons to pursue their legitimate ends through

the least restrictive means, see Abbott, 490 U.S. at 40913, it does require appropriate tailoring, preventing institutions from unthinkingly adopting policies that are

far more speech-restrictive than necessary to address

legitimate penological concerns. At the same time, examining the fit between means and ends provides a

safeguard against invidious discrimination masquerading as a sweeping response to a legitimate problem.

Finally, although prison officials would maintain

the burden to justify their speech restriction, plaintiffs

would have the opportunity to respond with evidence

demonstrating both the harms caused by the denial of

the publication, in terms of their First Amendment

rights and to their efforts at rehabilitation, and the potential irrationality of the officials’ policy. The courts

then would be required to perform a careful, searching

review to determine if the justifications for the censor-

24

ship are substantial enough to overcome the restrictions on prisoner constitutional rights, all while

providing some deference to the institution’s factual

assertions regarding the extent of predicted harms.

This Court should take the opportunity to reconsider the deference provided under Turner and, in

light of the expertise gained in applying RLUIPA to

prisoner free exercise claims, place a greater burden

on the institution to justify its restrictions on publishers’ and prisoners’ First Amendment rights.

CONCLUSION

This Court should grant the petition for writ of

certiorari.

Respectfully submitted,

CHARLES H. DAVIS

Counsel of Record

KEVIN K. RUSSELL

GOLDSTEIN & RUSSELL, P.C.

7475 Wisconsin Ave.

Suite 850

Bethesda, MD 20814

(202) 362-0636

cdavis@goldsteinrussell.com

October 19, 2018

APPENDIX

1a

APPENDIX

Titles and university affiliations for identification

purposes only

Andrea Armstrong

Professor of Law

Loyola University New Orleans College of Law

Hadar Aviram

Thomas Miller ’73 Professor of Law

University of California-Hastings College of Law

W. David Ball

Associate Professor

Santa Clara University School of Law

Monica C. Bell

Associate Professor of Law

Yale Law School

Lynn S. Branham

Visiting Professor of Law

Saint Louis University School of Law

Erwin Chemerinsky

Dean & Jesse E. Choper Distinguished Professor of Law

University of California-Berkeley School of Law

Alan K. Chen

Professor of Law

University of Denver Sturm College of Law

2a

Fred Cohen

Professor Emeritus

SUNY Albany School of Criminal Justice

Holly S. Cooper

Lecturer & Co-Director of the Immigration Law Clinic

University of California-Davis School of Law

Jason C. DeSanto

Senior Lecturer

Northwestern University Pritzker School of Law

Sharon Dolovich

Professor of Law

UCLA School of Law

Director

UCLA Prison Law & Policy Program

Bryan K. Fair

Thomas E. Skinner Professor of Law

Hugh E. Culverhouse Jr. School of Law

at the University of Alabama

James Forman, Jr.

Professor of Law

Yale Law School

Nicole B. Godfrey

Visiting Assistant Professor

University of Denver Sturm College of Law

G.S. Hans

Assistant Clinical Professor of Law

Vanderbilt Law School

3a

Taja-Nia Henderson

Professor

Rutgers Law School

Shon Hopwood

Associate Professor of Law

Georgetown University Law Center

Danielle Jefferis

Clinical Fellow

University of Denver Sturm College of Law

Jennifer Kinsley

Professor of Law & Associate Dean

for Professional Development

Northern Kentucky University Chase College of Law

Andrew M. Koppelman

John Paul Stevens Professor of Law

Northwestern University Pritzker School of Law

Seth F. Kreimer

Kenneth W. Gemmill Professor of Law

University of Pennsylvania Law School

Gregg P. Leslie

Executive Director, First Amendment Legal Clinic

Sandra Day O’Connor College of Law

at Arizona State University

Lyrissa Lidsky

Dean & Judge C.A. Leedy Professor of Law

University of Missouri School of Law

4a

Jules Lobel

Bessie McKee Walthour Endowed Chair

& Professor of Law

University of Pittsburgh Law School

Daniel E. Manville

Director, Civil Rights Clinic

Michigan State University College of Law

Justin Marceau

Professor of Law & Animal Legal Defense Fund

Professor

University of Denver Sturm College of Law

Hope R. Metcalf

Clinical Lecturer in Law & Research Scholar in Law

Yale Law School

Jamelia N. Morgan

Associate Professor of Law & Robert D. Glass

Research Scholar

University of Connecticut School of Law

Michael B. Mushlin

Professor of Law

Elisabeth Haub School of Law at Pace University

Martin H. Redish

Louis & Harriet Ancel Professor of Law & Public Policy

Northwestern University Pritzker School of Law

Keramet Reiter

Associate Professor of Criminology, Law and

Society & Law

University of California Irvine School of Social Ecology

5a

Ira P. Robbins

Barnard T. Welsh Scholar and Professor of Law

American University, Washington College of Law

Laura Rovner

Professor

University of Denver Sturm College of Law

David Rudovsky

Senior Fellow

University of Pennsylvania Law School

Margo Schlanger

Wade H. & Dores M. McCree Collegiate Professor of Law

University of Michigan Law School

Andrew J. Schwartzman

Lecturer in Law

Georgetown University Law Center

David M. Shapiro

Clinical Associate Professor of Law

Northwestern University Pritzker School of Law

Jonathan Simon

Adrian A. Kragen Professor of Law

University of California-Berkeley School of Law

Rodney Smolla

Dean & Professor of Law

Delaware Law School at Widener University

Dean Spade

Associate Professor of Law

Seattle University School of Law

6a

Geoffrey R. Stone

Edward H. Levi Distinguished Service Professor of Law

University of Chicago Law School

Laura Weinrib

Professor of Law

University of Chicago Law School

Carter C. White

Lecturer & Supervising Attorney of the Civil Rights Clinic

University of California-Davis School of Law